Standing Committee B

Thursday 13 December 2001

(Afternoon)

[Mr. Bill O'Brien in the Chair]

2.30 pm

Mr. David Wilshire (Spelthorne): On a point of order, Mr. O'Brien. This morning, we had difficulties with Tuesday's Hansard. It has now appeared, but it seems to report a sitting for a day on which we did not sit. I think that we can assume that the front cover means Tuesday, not Monday.

The Chairman: I understand that that has been explained. We will interpret Monday as Tuesday.

Clause 248

Proceedings for recovery orders in England and Wales or Northern Ireland

'(1A) All proceedings for a recovery order in the High Court shall take place in chambers.'.[Mr. Grieve.]

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are taking amendment No. 383, in page 146, line 21, at end insert

'(1A) All proceedings for a recovery order in the Court of Session shall take place in chambers.'.

Mr. Alistair Carmichael (Orkney and Shetland): Committee members will be relieved to hear that when the Committee rose at 11.25 this morning, I had formed a characteristically eloquent and well structured submission on the amendment. Unfortunately, I did not take the precaution of making any notes, so my contribution will of necessity be shorter than it might otherwise have been.

Mrs. Anne McGuire (Stirling): It must have been a good lunch.

Mr. Carmichael: I do not need a good lunch to forget.

In general terms, I support the amendment, which raises an important point and requires full discussion. It would provide important protection for innocent third parties who may well have substantial business interests brought into question. Mud thrown is mud that sticks.

In an earlier sitting, the Minister of State referred to the difficulties that the hon. Member for Paisley, North (Mrs. Adams) had with drug dealers in her constituency. It was suggested that a security company of doubtful propriety was involved. It is conceivable that many people in her constituency interacted for some time, in good faith, with such ostensibly

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respectable companies. They might be brought before the court under proceedings for recovery orders. There must be some protection for people in such circumstances.

The hon. Member for Beaconsfield (Mr. Grieve) made a good point about the personal safety of those who are party to criminal actions. Holding proceedings in chambers would afford third parties a degree of security, so the amendment could be said to strengthen the Bill. I endorse his remarks about the publication of the decision. I see no difficulty with thatpublication seems eminently sensible. The amendment offers important protection to innocent third parties, and I urge the Minister to give it serious and careful consideration.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): The amendment would require that civil recovery proceedings in England, Wales and Northern Ireland take place in chambers. Amendment No. 383 would impose a similar requirement on civil recovery proceedings in Scotland.

Amendment No. 382 would mean that civil recovery proceedings must take place in private rather than in open courtwe discussed ''must'' and ''may'' before we adjourned for lunch. We do not accept that such a requirement is necessary or appropriate. The existing rules are sufficient to determine when civil recovery proceedings should be held in private. Under the civil procedure rules, the general rule is that court hearings are held in public. Open justice must be the presumption. That has been our law for a long time and it is now confirmed by our incorporation of the European convention on human rights. There can, of course, be exceptions. Under the rules, any party would be able to apply to the High Court for civil recovery proceedings to be conducted in private. It would be a matter for the court to judge whether that was appropriate in a particular instance.

Although I understand the worries that have been expressed, the argument is that a public hearing is more important because it acts as a safeguard, as it does in criminal cases. The hon. Member for Beaconsfield asked whether we were willing to change ''must'' or ''shall'' to ''may'', but ''may'' is catered for within civil procedures. He suggested that the predisposition should be towards proceedings being taken in private, with an ability to go public. That is not the case. It is the other way round. I accept that that is fundamentally different from his suggestion on how civil proceedings operate. There is a case to be argued for the proceedings to be taken in private.

Mr. Nick Hawkins (Surrey Heath): The Minister is approaching such a serious matter in a helpful way. Can he direct me to the facility under which matters can be taken in private? Is he talking about the general civil law or something specific under the Bill?

Mr. Ainsworth: The whole of part 5 is based on civil procedure rules.

Mr. Hawkins: Is the Minister talking about general civil procedure?

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Mr. Ainsworth: Absolutely. There is no difference between what is proposed under the Bill and that which applies to other civil proceedings. I am not suggesting that there is.

Mr. Hawkins: Even if the Minister is not persuaded by our argument, as I hope he may yet be, will he accept that the presumption should be towards private and that the exception should relate to public? I still stick to that proposal. That would be preferable for all the reasons that have been outlined. It would be helpful to receive clarification under the Bill, given that it explores at length much of the procedure to take account of the revisions that the Government are introducing. Would it not be better to have a reference in the clause to hearings in chambers?

Mr. Ainsworth: We are only recently into part 5. While the hon. Gentleman is absolutely right about parts 2, 3 and 4, he may find a shift of emphasis in part 5 in that there are not generally specific provisions and that it follows the normal procedures. I am told that part 39 of the civil procedure rules covers such issues. He is asking that we make specific provision outside and away from the usual civil procedures. If he is adamant that that remains his view, perhaps we may differ or perhaps we will not.

Serious allegations are made against people in the course of normal civil proceedings. There is no automatic right to privacy. A libel action involving allegations of defamation will nearly always be held in open court. That could potentially be as damaging as, or even more damaging than, anything that might arise in the course of civil recovery proceedings. A civil fraud claim will involve allegations of fraud, but will still normally be held in open court.

As I said, civil recovery does not amount to an accusation that a particular person took part in a particular criminal act. There is no necessary implication that the respondent or a third party in a civil recovery case is guilty of unlawful conduct that generated the original recoverable property. If the case is based on a person having acquired property that is recoverable because of another person's unlawful conduct that will be made explicit in the proceedings, as it will form part of the director's case. Of course, the amendment presupposes that every respondent and third party in a civil recovery case will want anonymity. The hon. Member for Beaconsfield addressed that issue fully in his remarks, and I agree with him that that would not always be the case.

Mr. Dominic Grieve (Beaconsfield): I was struck by the Minister's comment a moment ago about the statement on the application that the recovery procedure is against a party who, it has been accepted, has acquired assets innocently. In those circumstances, does he consider that the proceedings should be in chambers if the individual so wishes?

Mr. Ainsworth: No, I would not accept that we should tell the court that proceedings must be in chambers when that condition applies. If the individual concerned wants the proceedings to be in chambers, his representative can make that case and

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seek to persuade the court. The court has total discretion and freedom to have private hearings under the civil procedure rules as I understand them. The hon. Gentleman appears to be asking us to say that when the property is being recovered from an innocent third party, the proceedings must be in private. However, the original application will make it absolutely clear that that allegation is being made, and that there is no allegation that the person committed the criminal act, but that they have acquired criminal property.

Mr. Grieve: I accept that, but if the decision, against the wishes of the person against whom such an application is being brought, is that the proceedings should take place in public, and the person feels that his business interests will be severely damaged by disclosures and other matters that will have to be aired, the statewhich is not another litigant but has responsibilities towards all, including those against whom it is litigatingwould see fit to introduce a rule to protect their privacy.

Mr. Ainsworth: The hon. Gentleman is absolutely right, but the rule has already been provided by the state under civil procedure rules. Those rules allow for the court to take that decision having heard representations about the case. The hon. Gentleman is now saying that we should deny the court that discretion, and tell it, in those circumstances, that it must sit in chambers, rather than allowing the same rules to apply that apply in other civil proceedings in which it has the discretion to decide.

Mr. Hawkins: Let me try to explain to the Minister why my hon. Friends and I feel that a different rule is necessary. Although the Minister has said that parts 2, 3 and 4 may be different, the Assets Recovery Agency is a new creature. The state should strain every sinew to protect those who may turn out to be completely innocent when such a new creature is being created. That is why it would be better for the Bill to provide that such matters should normally be dealt with in private, and that only in exceptional circumstances should they become public. That is why there is a strong case for a different rule to apply from those under standard civil procedures.